1. Introduction
This Service Agreement (the “Agreement”) governs the purchase and use of Salelytics, LLC’s (“Provider”) services (as defined below) (the “Provider Services”). Services may be purchased by: (a) executing a work order or statement of work or purchase order (for purposes of this Agreement each shall be referred to as an “SOW”); or (b) using the Services. The individual or legal entity executing an SOW or opening an account for Services under this Agreement shall be referred to as “you,” “your” or “Client” in this Agreement and the other party who executes the SOW or provides the Services shall be referred to as “we,” “us” or “Provider” in this Agreement. Each SOW shall govern and control in case of conflict with the Agreement, and in conjunction with this Agreement shall form a separate agreement between the parties that execute the applicable SOW. Please read this Agreement carefully before executing an SOW, accessing, or otherwise using the Services. By executing an SOW, accessing, or otherwise using the Services you agree to be bound by this Agreement. Please maintain a copy for your records. If you do not agree with the terms of this Agreement, do not use the Services.
2. Service Description
This Agreement governs your use of Provider’s automated and/or live agent call services (such as B2B/B2C Customized Sales Solution, Full Account Management, Retail Sales Coverage, Lead Management, Sole Territory Coverage, Team Sell, business process services or other related services set forth in the applicable SOW between you and Provider (the “Services”), or used by you if no such SOW has been executed. Client agrees to provide information reasonably required by Provider to perform Services, including as applicable, but not limited to: hiring profiles; scripts; message content, recipient contacting information and lists, database of accounts or leads, program content and materials; Client or third party databases; forecasts; current process performance statistics; Client or third party software, hardware, systems, routing and network addresses and configurations; and key contacts for problem escalation (collectively the “Client Materials”). You agree that our obligation to provide Services is conditioned upon you providing all information and assistance reasonably required to perform the Services. Provider will provide standard reports electronically on a monthly basis detailing the results of each Program. The Client Materials shall be provided in a format as agreed upon by the parties and should include key contact information.
3. Term
This Agreement will continue so long as the Services are, accessed, or otherwise used. Each SOW may specify its duration (each an “SOW Term”) and/or each SOW may further specify one or more services purchased under the SOW.
4. Renewal
All SOW’s shall automatically renew for yearly periods unless either party terminates the specific SOW in writing ninety (90) days prior to the expiration of the applicable SOW, which termination will be effective at the expiration of the applicable SOW.
5. Termination for Cause
Any SOW may be terminated as follows: (a) by either party upon the failure by the other party to perform any material obligation related to such SOW that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party; (b) by either party upon the violation by the other party of any applicable state or federal law, statute, rule or regulation in relation to its performance of the SOW; provided that such right to terminate shall only be available for 30 days from the time that the non-violating party is aware or should have been aware of such breach; or (c) by Provider, upon fourteen (14) days written notice if undisputed payments are in arrears. In addition, Provider may take any or all of the following actions any time undisputed payments are more than fourteen (14) days in arrears: (i) suspend the Services; or (ii) withhold data, materials or reports.
6. Effect of Termination
The termination of any SOW shall not otherwise affect the Term of this Agreement or any other SOW. If you terminate any SOW for cause: (a) you will pay for all Services rendered up to the date of termination; (b) Provider will reimburse you for any amounts prepaid by you for Services not rendered; and (c) you shall be relieved of any future payments due under such SOW. Otherwise, upon any termination of this Agreement or any SOW, as applicable, you agree to pay for: (a) all Services rendered up to the date of termination; and (b) any future amounts due under this Agreement or the SOW for the entire SOW Term or SOW Term, as applicable, including the current renewal thereof, if applicable. The parties agree and acknowledge that Provider has made pricing concessions based on the provisions agreed to herein and that any shortfall payments due are a fair approximation of the damages that would be caused to Provider and do not constitute a penalty.
7. Payments, Charges and Minimum Commitment
With respect to Provider Services, you agree to pay in advance for all training related to Provider Services as fully set forth in the SOW which will be invoiced as incurred. Billing for electronic transmission of reports will be waived by Provider. If Client desires to utilize a rebate check Program, an additional processing charge of $1.95 will be invoiced to Client for each check issued. The aggregate face value of rebate checks must be remitted to Provider by Client prior to mailing checks. No rebate checks will be issued without prior approval of Client. Printing costs and / or mailing costs are to be reimbursed to Provider by Client at Provider costs plus 10% handling. Fax charges will be invoiced to Client at $.25 per page. EDI line charges / access fees, if any are to be reimbursed to Provider by Client at Provider's cost. Requests for ad hoc reports may require database programming. Database programming costs shall be charged to Client at the rate of $150.00 per hour. Client shall reimburse Provider for all reasonable and out-of-pocket travel related expenses incurred by Provider when visiting selected Accounts and attending Client functions, including product training sessions. Client must approve all such expenses in advance in writing. When travel has been completed, all expenses will be documented by Provider with appropriate receipts. If Client wishes to offer bonus or incentive money to Provider Associate(s), funds will be handled by Provider and processed through Provider payroll. Client agrees to pay for all such bonus or incentive amounts in addition to any related employment or payroll taxes, fees or surcharges that Provider is required to pay on such bonus or incentive amounts. In the event it is necessary to change the scope of the Client Program (encompass a larger account base, include another focus, respond to a new direction or need in the sales effort), upon mutual agreement of both parties, the SOW will be amended and additional costs will be determined at that time and agreed to in writing prior to such changes being effective.
At the end of each month during the SOW term, Client agrees to full payment of the shortfall resulting from Client’s failure to meet the minimum commitment (if included in the SOW) and any such shortfall shall appear as a line item on Client’s invoice. Only monthly fees for Sales Associates and Sales Managers in accordance with Schedule I billed to Client will go towards the minimum commitment. Client shall not be responsible for any shortfall resulting from Provider’s failure to staff to the minimum commitment. Upon any termination of this SOW for any reason other than a termination for cause by Client, Client shall pay the shortfall between the fees actually paid and the minimum commitment fees due for the SOW Term within thirty (30) days of such termination. The parties agree and acknowledge that Provider has made pricing concessions based on the provisions agreed to in this SOW and that any shortfall payments due under this SOW are a fair approximation of the damages that would be caused to Provider and does not constitute a penalty.
8. Staffing
Provider agrees to staff each Program with the number of associates set forth in the SOW and You agree to pay Provider for those associates. Excluding a Termination for Cause, You agree to give Provider a minimum of forty-five (45) days or as otherwise mutually agreed to amount of time agreed to by the Parties in writing for any requested changes in the number of associates on Your Programs. Client acknowledges and understands that if Client requests an increase in staffing, recruiting and training lead times will affect the timing of supplying additional Associates. If, in the event the requested changes are more or less than five percent (5%) of overall staffing, Provider may, at its sole option, determine the amount of time needed to meet such requested change.
9. Invoicing
You agree to make payment of all invoices under this Agreement within thirty (30) days from the date of invoice. Unpaid invoices will be subject to a monthly service charge which is the lesser of one and one-half percent (1½%) per month, or the highest rate allowed by law. You must notify Provider of any disputed charges within thirty (30) days from the date of the invoice, otherwise you will be deemed to agree to such charges and waive all such claims and Provider will not be subject to making adjustments to charges or invoices. Rates for the Services are set forth in the SOW. Provider may increase the rates on each twelve (12) month anniversary of the applicable SOW by the CPI-U for all items, not seasonally adjusted, for Midwestern Size Class B/C cities (CPI) for the same period.
10. Unpaid Invoices
In the event an invoice is not paid in full, for any reason, within thirty (30) days from the invoice date, Provider shall have the right to suspend all or any portion of the Services until such time as all invoices and applicable late fees have been paid. Following such payment, Provider may reinstate Services only upon satisfactory assurance of Your ability to pay for Services, including modified payment terms such as prepayment. Such suspension shall not relieve you of any payment liability. You agree to reimburse Provider for any costs, expenses, or fees expended by Provider in connection with any collection efforts against you, including reasonable internal and outside attorneys’ fees.
11. Taxes, Fees and Surcharges
In addition to the rates for the Services, you shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes now or hereafter attributable to the Services. On each twelve (12) month anniversary of the effective date of any SOW, you agree that the pricing shall be increased by the CPI-U for all items, not seasonally adjusted, for Midwestern Size Class B/C cities (CPI) (Table 10), for the same period and such rate increases shall appear on Client’s invoices in accordance with the applicable SOW.
12. License
Subject to your compliance with the terms and conditions of this Agreement, Provider hereby grants you a limited, non-exclusive, non-transferable license during the applicable SOW Term to use the Services (“Licensed Materials”). Except as specifically set forth herein, Provider or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Services, including without limitation all technology, any Provider owned telephone numbers, web addresses, software, or systems relating to the Services. You agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Services. Other than using the Services where you are an active participant, you may not resell the Services or otherwise generate income from the Services (from an ASP model or otherwise).
13. Compliance, Calling Lists and Do Not Call Obligations
You represent and warrant that: all representations to be made by Provider as a part of the Services and the content, timing, leads, and nature of all call Programs (including promotions and advertising to induce calls to Your programs) will be in compliance with all laws, rules, and regulations, including maintenance of Your internal Do Not Call list. You further represent and warrant that prior to directing Provider to use any call lists (the “Records”), You have scrubbed the Records against your own internal Do Not Call list, if applicable. You are solely responsible for the information or content submitted, posted, transmitted or made available through your use of the Services. You may use the Services to transmit personalized wording, images and language (“Messages”) or direct Provider to make contacts via any channel to, or with, Your customers, partners, or other recipients (the “Recipients”). You are responsible for maintaining the confidentiality of your accounts and owner numbers and if applicable, any necessary codes, passwords and personal identification numbers used in conjunction with the Services and for all uses of the Services in association with your accounts whether or not authorized by you including unintended usage due to holidays, daylight savings, computer clock errors or similar circumstances. You acknowledge and agree that Provider does not control nor monitor your Messages nor guarantee the accuracy, integrity, security or quality of such Messages. Use of recording or taping any use of the Services by you may subject you to laws or regulations and you are solely responsible for and obligated to provide any required notification to those being recorded or taped. Further, You represent and warrant that Provider’s use of the Messages as directed shall not violate the rights of any third party or any law, rules or regulation.
For the Client Materials under an SOW defined as Business to Business accounts (“B2B”), Provider will not scrub the Records against the National Do Not Call Registry, any state Do Not Call list, or the DMA Telephone Preference Service List (the “DNC Registries”), unless applicable. Provider will scrub all Records against Provider’s internal Do Not Call list. Only in the event an automatic dialing system is used, Provider will scrub against the DMA Wireless Block Identifier and the Neustar Wireless Do Not Call lists (“Wireless Lists”) unless directed otherwise, in writing, by You. For any leads that You direct Provider not to scrub against the Wireless Lists, You represent and warrant (a) You have obtained any required prior express consent or prior express written consent to contact each wireless phone number delivered by You to Provider in connection with the provision of contacts made using an automatic telephone dialing system; and (b) the intended contact recipient is the current subscriber to, or non-subscriber customary user of the wireless phone number.
In the event Provider reasonably believes You may not have complied with these provisions, Provider may, at its option, scrub all numbers against the Wireless Lists or not provide Services. If required by law or if so directed by You, Provider will provide You with a listing of all contacts who would like to have their name removed from future outbound solicitations. In addition to any other indemnification obligations, You shall indemnify, defend and hold Provider and its officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from Your breach of any representation and warranty set forth above.
14. Privacy and Data Use
The information we hold about you will be used to provide the Services requested and for identification, account administration, analysis and fraud/loss prevention purposes. More details about how that information is used are in our privacy policy which governs your visit to any Provider website and use of the Services.
15. Data
In the course of performing services on behalf of its clients, Provider obtains and develops knowledge and information that Provider owns related to the business, relationships and needs of prospects and customers, including contact names, competitive information and buying information (“Marketing Information”). The parties recognize that Provider utilizes such Marketing Information to most effectively deploy and perform the Services for Client hereunder. You acknowledge that Provider may develop or obtain further Marketing Information in the course performing the Services. For the avoidance of doubt, Marketing Information shall not include: (a) any of Your product pricing or product offerings or product quantities ordered (“Client Product Information”); or (b) Protected Health Information (“PHI”) or Nonpublic Personal Information (“NPI”) (as PHI and NPI are defined in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (45 C.F.R. Parts 160-164) and the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.)) of Your customers and prospects. Client Product Information and PHI and NPI of Your customers and prospects, if any, and the Client Materials shall be Your Confidential Information and solely owned by You. Provider shall only use such Client Product Information, PHI and NPI at the direction of You in performing the Services on your behalf.
16. Export and Import Control Laws and Regulations
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services and any related software. Without limiting the foregoing, you acknowledge that the Services and any related software are or may be an “encryption item” subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
17. Compliance
Each party represents and warrants to the other that: (a) its execution and performance of this Agreement and the applicable SOW will not violate any provision of law, rule, regulation to which such party is subject; and (b) such party will comply with all laws, rules and regulations pursuant to which such party conducts its business. Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the applicable SOW; (b) the execution, delivery and performance of this Agreement and the applicable SOW have been duly authorized by such party; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement and the applicable SOW; and (d) the signatory to this Agreement and the applicable SOW possesses all necessary authority to enter into the Agreement and applicable SOW. Upon request, you agree to provide reasonable proof of compliance with the provisions set forth in this Agreement. You agree to immediately notify us of any actual or potential breach of this Agreement by you. You acknowledge and agree that: (a) Provider does not provide content and Client shall be solely responsible for all content and Messages and for providing any list of names, numbers or addresses for Client to utilize in sending Messages; and (b) Provider has not and is not expected to provide Client with any analysis, interpretation or advice regarding the compliance of any aspect of Client’s Messages, Client’s content, campaigns or programs with any third party rights or laws, rules, or regulations. Client agrees that Provider may in its sole discretion suspend or terminate provision of any or all of the Services without liability or penalty at any time in the event that: (a) Provider is obliged to comply with an order, instruction, directive or request of a governmental body or network operator which necessitates that it do so; (b) Provider discovers an actual or potential breach or where Provider believes that Client has not so complied with its obligations hereunder; or (c) one or more of the network operators upon which the provision of Services hereunder is dependent suspends its provision of those services to Provider. You agree that all use by you of the Services shall comply with applicable laws.
18. Investigation and Enforcement of the Agreement
All users of the Services must adhere to the terms of this Agreement. We have the right, but are not obligated, to strictly enforce this Agreement through self-help, active investigation, litigation and prosecution. We may also access and disclose any information (including transactional information) related to your access and use of our Website or Network for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with law, rule or regulation (e.g., a lawful subpoena); (3) protecting our rights or property and those of our customers; or (4) protecting users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services.
19. Limited Warranty
ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. YOU UNDERSTAND AND AGREE THAT PROVIDER’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. PROVIDER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PROVIDER MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH PROVIDER OR THE SERVICES, OR THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF PROVIDER’S SERVICES ARE AT YOUR SOLE RISK. PROVIDER IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND PROVIDER’S REASONABLE CONTROL.
20. Limitation of Liability
EXCEPT FOR PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER OR ITS SUPPLIERS BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF COVER OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE SERVICES OR THIS AGREEMENT WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT MAY NOT BE EXCLUDED BY LAW AND PAYMENT OBLIGATIONS, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY).
21. Indemnification
You shall indemnify, defend and hold Provider and its officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, liabilities, and damages (including punitive, treble and enhanced damages and reasonable attorneys’ fees) arising out of, connected with or resulting from: (i) a breach by You of any term of this Agreement; (ii) the Client Materials; or (iii) a claim by any customer of Yours or any party called on Your or your customer’s behalf relating to any defect in any product or service offered by You or any of its clients; or (iii) any actual or alleged infringement or violation by you (including without limitation, any person accessing the Services using your Client Materials) of any intellectual property, privacy or other right of any person or entity or (iv) information or content that you submit, post, transmit or make available through the Services. Provider shall indemnify, defend and hold You and its officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, liabilities, and damages (including punitive, treble and enhanced damages and reasonable attorneys’ fees) which arise out of or result from a breach by Provider of any term of this Agreement.
Subject to the requirements of this section, Provider will defend, at its expense, a third-party action, suit, or proceeding against You (“Claim”) to the extent such Claim is based upon an allegation that the Licensed Materials, as of their delivery date under this Agreement, infringe a valid United States patent. Provider makes no representations, provides no warranties, and assumes no responsibilities for the use, sale, placement, or other disposition by You of products incorporating the Licensed Materials under this Agreement. Provider’s liability to You will not extend to infringement caused by use of the Licensed Materials as an element of a patented product or process. You will hold Provider and its officers, directors, employees, and agents harmless against all liabilities, demands, damages, expenses, or losses arising out of or resulting from any misuse of the Licensed Materials.
The party claiming indemnification shall: (i) provide prompt written notice to the indemnifying party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying party; and (iii) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party.
In order to be indemnified to the extent stated, You must operate within the instructions and technical limits provided or approved by Provider. Provider shall have no indemnity obligation for (1) Provider-furnished licensed materials that have been used with or in combination with hardware or software not furnished by Provider; and (2) any claim or any portion of any claim that arises from Your reckless, wanton, wrongful, or otherwise negligent acts.
22. Confidentiality
Each party agrees to hold all Confidential Information of the other party in strict confidence. Confidential Information shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and marked as Confidential (“Confidential Information”). The parties agree that all Confidential Information shall be disclosed only to those employees or representatives on a need-to-know basis and who agree to be bound by these confidentiality restrictions. This confidentiality obligation shall not apply to any information (i) independently developed by a party, (ii) generally available to the public other than by a party’s breach of this Agreement, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation, provided that the receiving party gives as much notice as is reasonably practical and provides reasonable assistance to the disclosing party in challenging or modifying the disclosure so required. Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination of the applicable SOW or the request of the discloser. Notwithstanding the foregoing, the parties acknowledge that recipient shall not be required to return to discloser or destroy those copies of Information residing on recipient’s backup, disaster recovery or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until such Information is destroyed.
23. Third Party Services
All access and use of any third party Services is governed by the terms and conditions set forth from time to time by such third party provider and such terms and conditions are incorporated herein by reference.
24. Enforceability/Waiver
If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks, and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Provider’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by Provider in a non-electronic writing manually signed by a duly authorized representative of Provider.
25. Miscellaneous.
Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. You and Provider are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. The parties confirm that they wish to have this Agreement written in English only. You authorize Provider’s monitoring including recording of calls for the purposes of quality assurance and you further consent to Provider’s use of automatic dialing equipment to contact you. Provider’s performance of the Services is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Provider’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of Provider’s Website, the Services or information provided to or gathered by Provider with respect to such use. You may not assign this Agreement to any other person or entity without Provider’s prior written approval, but nothing restricts Provider’s ability to assign this Agreement or subcontract the Services hereunder.
26. Identification, Advertising & Publicity
Client agrees that it will not identify Provider as the provider of the Services to the media or any governmental, regulatory, or other official without prior notice to Provider and Provider’s prior consent, unless required by legal process, law, rule or regulation, in which case Client shall still notify Provider of such requirement. Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement or SOWs, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent. Notwithstanding the foregoing, Provider may use Client’s name and trademarks in a list of customers, or in connection with written sales or promotional materials.
27. Governing Law; Exclusive Forum; Jurisdiction
You consent to the exclusive jurisdiction and venue of the courts sitting in the State of Delaware with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any services provided by Provider. Regardless of Venue, this Agreement and all causes of action related to this Agreement or the Services will be governed by and construed in accordance with the laws of the state of Delaware, USA, without giving effect to the conflict-of-laws principles thereof that would require application of the laws of a different state or jurisdiction. You agree to service of process by mail directed to your billing address. You waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in your local courts. You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by you within one (1) year after the cause of action arose.
28. Force Majeure
Provider will not be responsible or liable for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of god or of the public enemy; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunication system failure; war; technology attacks, epidemic; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
29. Entire Agreement
This Agreement, in conjunction with the applicable SOW constitutes the entire agreement between the parties to such SOW with respect to the subject matter of this Agreement and the applicable SOW and supersede all prior agreements, discussions, proposals, representations or warranties, whether written or oral. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to Provider, will have no effect and that this Agreement is the only contract between Provider and you regarding the Services and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. A printed version of this Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. SOWs may be executed by fax, and/or in any number of counterparts, all of which shall together be considered an original and may be evidenced by a fax or scanned electronic (e.g. .pdf, .tif) copy.
30. Increased Cost of Services
Notwithstanding the terms of this Agreement or any SOW, if at any time Provider’s variable labor costs in providing the Services from a particular location increase by 5% or more (i) as a result of any law, regulation, order, arbitral or judicial award or negotiated agreement; or (ii) at the discretion of Provider provided (a) such increase is incurred within any thirty (30) day period and (b) Provider has given prior written notice to Client no less than thirty (30) days earlier that such increase is likely to occur, Client shall, within thirty (30) days of receipt of written notice of such cost increase from Provider under section (i) or (ii) above, either (x) execute an amendment to the applicable SOW to revise pricing to reflect such increased costs, (y) execute an amendment to the applicable SOW permitting Provider to provide the Services under the applicable SOW from one or more alternate locations, or (z) terminate the applicable SOW upon thirty (30) days written notice to Provider. In the event of a termination in accordance with the foregoing sentence, any transition assistance and ramp down provisions under the applicable SOW shall be reduced to a period no longer than sixty (60) days.
31. Non-Solicit
Without the prior written consent of the other party, during the applicable SOW Term and continuing through the first anniversary of the termination of the applicable SOW Term, neither party shall directly or indirectly, solicit or attempt to solicit for employment any employees or agents of the other party who are directly involved in carrying out the obligations of such party related to the Services. If any employee or agent of a party, as a result of active recruitment solicitation by the other party, becomes employed by such other party within the time periods defined above, such other party agrees to pay the party at the time of such employment an amount equal to seventy-five percent (75%) of the employee’s or agent’s estimated income during the first year of employment. This paragraph does not pertain to unsolicited individuals that voluntarily approach a party for employment or respond to general advertising.
32. Change Management
Either party may request changes or enhancements to the Services. In such event, the following procedure shall be followed by the parties (the “Change Policy”). The requesting party shall provide a written description of the change and the parties shall meet in good faith to discuss the change and any additional costs or other required terms and any such change shall only become effective upon mutual agreement on a change order or amendment. For the avoidance of doubt, if the Agreement or an SOW otherwise allows either party to unilaterally alter the Services or any policies, rules or procedures applicable to this Agreement or the SOW, either party may implement the Change Policy prior to any such changes becoming effective or binding if such unilateral change will cause time or cost impact to such party.
33. Notice
Any notice to be provided shall be in writing and shall be deemed given: (a) if by hand delivery, upon receipt thereof, (b) if mailed, three (3) days after deposit in the United States mail, postage prepaid, certified mail return receipt requested, or (c) if by next day delivery service, upon such delivery, or (d) if by facsimile transmission, upon receipt of such transmission, to the addresses or facsimile numbers set forth below the signature block or to such other addresses or facsimile numbers as either party may designate from time to time by written notice to the other party hereto.
34. Modification.
Provider may, at any time, amend the provisions of this Agreement. Any amendment proposed by you may only be accepted by Provider in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if Provider posts amended terms on its Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, you agree to be bound by any such amended provisions. Therefore, you agree to periodically visit the Website to examine the then-current Agreement.
Revised: January 1, 2024
